Mass tort litigation typically involves large numbers of similar tort claims made by claimants (variously, “claimants” and “plaintiffs”) against corporations (variously, “potentially responsible parties” or “defendants”) that may be legally responsible for bodily injuries resulting from exposures to injurious conditions or substances.
In order to maintain a tort claim, each claimant must show some evidence of present bodily injury that the claimant attributes to that exposure. The evidence of present bodily injury may range from slight to serious, including symptoms of life threatening conditions associated with the injurious exposure.
Claimants who have already manifested symptoms of serious bodily injury may have a basis for substantial damages, including consideration of further bodily injury that is reasonably certain to emerge in the future. Those claimants who have manifested only slight bodily injury would generally be entitled to less substantial damages. Neither symptomatic nor asymptomatic claimants would generally be entitled to current damages awards or settlements for future injury that is not then reasonably certain to occur.
A potentially responsible party may or may not have liability insurance under which an insurer is contractually obligated to provide a defense against bodily injury tort claims and to pay any damages awards or settlements within its insurance coverage.
Settlements are complicated by the substantial risk of a later emergence of serious bodily injury, for example cancer, associated with the injurious exposure that was not evident at the settlement. Neither tort claimants nor the potentially responsible parties can then know with certainty whether or which of the claimants will later manifest more serious bodily injuries associated with that injurious exposure. By way of example, any claimants in mass tort litigation involving asbestos who present clinical evidence of injurious exposure and who are currently asymptomatic as to mesothelioma, lung cancer or other cancers that are associated with asbestos may later develop one or more of these critical injuries (“critical injuries”) and some of them are likely to do so.
Asymptomatic claimants who have been exposed to an injurious condition or substance and the potentially responsible parties and their liability insurers may wish to settle these claims. They do not, however, have an efficient mechanism for settling claims that have the risk of a future critical injury emergence. In some instances, the lack of this mechanism results in partial settlements in which claimants may, in the future, present additional claims upon later critical injury emergence.
The invention seeks to advance the state of the art for quantifying the risk of the later critical injuries emergence for claimants who currently present evidence of injurious exposure but who are asymptomatic as to the more serious or life threatening bodily injuries that are associated with the injurious exposure. Other features of the invention are apparent in the description that follows.